4.2 Excluding confessions

Question 1

What is the main statutory provision that deals with the admissibility of confessions by the defendant?

Answer 1

Section 76 PACE

Question 2

What statutory provision deals with the admissibility of confessions made by an accused person and sought by a co-defendant?

Answer 2

Section 76A PACE

Question 3

What statutory provision deals with the admissibility of confessions made by mentally ill defendants?

Answer 3

Section 77 PACE

Question 4

Which statutory provision defines “confession”?

Answer 4

Section 82(1) PACE

Question 5

How is “confession” defined in statute?

Answer 5

Section 82(1) PACE
“confession” , includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise

Question 6

In what proceedings does Section 76 PACE apply?

Answer 6

Section 76(2) and (3) PACE
in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person

Question 7

Where is the basic threshold test for the admissibility of confession evidence set out?

Answer 7

Section 76(1) PACE

Question 8

What is the basic threshold test for the admissibility of confession evidence?

Answer 8

Section 76(1) PACE
A confession ... may be given in evidence against him in so far as it is *relevant to any matter in issue* in the proceedings and is *not excluded* by the court in pursuance of this section.

Question 9

Which statutory provision requires the court to exclude confession evidence?

Answer 9

Section 76(2) PACE

Question 10

What are the two special criteria on which the court must exclude confession evidence?

Answer 10

Section 76(2) PACE
[Where] it is represented to the court that the confession was or may have been obtained—
(a)
by oppression of the person who made it; or
(b)
in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof

Question 11

When can the court allow confession evidence despite representations that it was obtained by oppression or in consequence of things likely to render it unreliable?

Answer 11

Section 76(2) PACE
in so far as the prosecution proves to the court *beyond reasonable doubt* that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

Question 12

Is the truth of a confession relevant to its admissibility?

Answer 12

No.
The test in Section 76(2) requires the prosecution to prove to the criminal standard that the confession was not obtained by oppression or in consequence of something that could render ANY confession unreliable. (Truth is for the tribunal of fact.)

Question 13

Which statutory provision defines “oppression” for the purposes of the exclusion of confessions?

Answer 13

Section 76(8) PACE

Question 14

What is the statutory definition of “oppression” for the purposes of excluding confessions?

Answer 14

Section 76(8) PACE
In this section “oppression”  includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).

Note “includes” - oppression is not limited to these criteria. See R v Paris, Abdullai and Miller (1993) 97 Cr App R 99.

Question 15

R v Paris, Abdullai and Miller (1993) 97 Cr App R 99

Answer 15

R v Paris, Abdullai and Miller (1993) 97 Cr App R 99
Prolonged hostile and intimidating questioning where the strength of evidence was exaggerated and police indicated that they would continue to question the suspect until he confessed amounted to oppression.

Question 16

What is the common law definition of oppression?

Answer 16

R v Pager [1972] 1 WLR 260 (CA)
- approved in R v Mushtaq [2005] 1 WLR 1513 (HL)
…questioning which by its nature, duration or other circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.

Question 17

What counts as a confession for the purposes of Section 82(1) PACE?

Answer 17

1. Wholly inculpatory / unequivocal confessions of guilt;
2. Mixed statements that are partly inculpatory and partly exculpatory;
3. Depending on context, nods, signs or gestures.

Question 18

What can “circumstances at the time” include for the purposes of exclusion under Section 76(2) PACE?

Answer 18

1. The physical and mental health of the suspect;
2. Circumstances known or unknown to the police;
3. Breach of PACE Codes especially C;
4. Any other relevant matters.

Question 19

Does the confession have to be shown to be unreliable or untruthful to be excluded under Section 76(2)(b)?

Answer 19

No. The requirements are that, because of the circumstances,

R v Gill [2004] EWCA 3245
- any confession -

Re Proulx [2001] 1 All ER 57
- would be likely -

to be unreliable.

Question 20

Can confession evidence be excluded without a challenge from the defence?

Answer 20

Section 76(3) PACE
...the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.

Question 21

Which case sets out the test for applying Section 76(2)(b) (circumstances rendering confession evidence unreliable)?

Answer 21

R v Barry [1991] 95 Cr App R 384

Question 22

What is the three-stage test for applying Section 76(2)(b) (circumstances rendering confession evidence unreliable)?

Answer 22

R v Barry [1991] 95 Cr App R 384

1. Identify the thing said or done;
2. Ask whether the thing said or done is likely to render the confession unreliable in all the circumstances?
3. Has the prosecution proved beyond reasonable doubt that the confession was not obtained in consequence of the the thing said or done?

Question 23

Are Sections 76(2)(a) and (b) mutually exclusive?

Answer 23

No - they are disjunctive. Either or both can be applied to the same facts.

Question 24

Can a confession made be rendered unreliable by the circumstances of a previous confession?

Answer 24

R v McGovern (1990) 92 Cr App R 228 (CA)
Principle: the circumstances of an original confession can taint a subsequent confession.

Facts: D was vulnerable and confessed to manslaughter without legal advice in breach of PACE. She subsequently confessed again with a solicitor.

Held: Conviction quashed. The initial confession tainted the subsequent confession.

Question 25

Can tainted confession evidence be used other than as evidence that the defendant did the thing confessed to?

Answer 25

Section 76(4)(b) PACE
The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence—
…
(b)
where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.

Question 26

Can the prosecution rely on evidence obtained as a result of a tainted confession?

Answer 26

Section 76(4)(a) PACE
The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence—
(a) of any facts discovered as a result of the confession

[There is no rule excluding “fruit of the poisoned tree”.]

Question 27

Who decides whether a confession was, in fact, made?

Answer 27

Ajodha v The State [1982] AC 204

The jury / tribunal of fact.

Question 28

Can seized evidence be excluded if the police failed to fill in an official record of the seizure at the time?

Answer 28

Yes - they can be excluded under s.78 PACE for breach of paragraph 2.8 PACE Code B, which requires written records in the constable’s pocket book (“Book 101”).